When Known Stalkers Kill, Should Police Pay?

In a case with sweeping implications, Bonnie Mooney is suing the RCMP for failing to stop her murderous partner.

Bonnie Mooney knew she had reason to be terrified of her violent, estranged common-law partner Roland Kruska. The problem was getting the RCMP to share her fear.

Now, with her best friend dead and her daughter maimed, Mooney is suing the RCMP and sparking debate: How much protection do police owe women who say they’ve been abused, stalked or targeted for attack?

In 1996, Kruska, armed himself with a sawed-off shotgun, broke into Mooney’s house, killed her best friend, shot her daughter and set her house on fire. It hardly happened out of the blue. During their five-year relationship, he tried to kill her once and assaulted her three times. Only six months earlier, Kruska had choked her so badly that he burst blood vessels in her eyes.

Several weeks before the shooting, Mooney had gone to the Prince George RCMP, after Kruska had chased her in his vehicle at high speeds following an argument. While at the office, Const. Andrichuk took a statement from Mooney and advised her to see a lawyer.

Her case was then closed and left uninvestigated. “I thought if the police officer can’t help me, what the hell is a lawyer going to do?” she says. “I was isolated, I was all alone, I was in an isolated area, and I just felt like there was no help out there for me.”

Over the past two years, Mooney has been trying to sue the Canadian justice system for failing to protect her. Law officials, says Mooney, must “be accountable” for largely ignoring her pleas for help. “There’s other people being victimized everyday. This is going to keep going on and on until somebody puts and end to it.”

In 1999, more than 27,000 cases of spousal violence were reported to police departments across the country. While the same Statistics Canada survey reveals that only 37 per cent of spousal violence involving female victims are reported to the police, experts say that a woman’s complaint is too often ignored by the police. Violence in these relationships will oftentimes escalate, they say, and a woman’s assessment of the likelihood of another occurrence of violence is often very accurate.

“Women’s complaints are often ignored because of sexist tendencies within the system, and this extends beyond the police to other levels of Canadian society,” says Suzanne Jay, director of Vancouver Rape Relief and Women’s Shelter.

Mooney’s case, which has attracted national attention, is currently before the B.C. Court of Appeal and a decision may be made as soon as three months from now. If Mooney wins, the verdict may change how police are expected to follow up on domestic abuse claims, and whether they may be tried and punished when they don’t.

‘He’s here for you’

On the morning of the shooting, Mooney and Kruska had been arguing over a cabin she was planning to build on their property for her friend, Hazel White, who was staying with her at the time.

That evening, after cutting all power and telephone lines outside the home, Kruska broke in brandishing his shotgun. Mooney managed to escape through a bathroom window, while her friend stayed behind to reason with him. “I was yelling at her, ‘Get my kids and get out of here’ and she said to me, ‘No Bonnie, you get out of here, he’s here for you’. Well, I was so paralyzed with fear, that I couldn’t move. So she gave me a shove.”

Mooney ran to a neighbour’s home to hide and call 911. She remembers seeing flames at her home. And then her 12-year-old daughter, who had managed to escape through the bathroom window as well: “He had blown off half of her arm. The top part was hanging off by a thread – literally.”

After the police arrived, Mooney was told that Hazel had been shot dead and that Kruska had turned the gun on himself. Mooney’s other seven-year-old daughter, Kristy, was found hiding. “To shoot a little kid, to kill a mother that has children herself. I just couldn’t believe it,” she says.

Eight years later, Mooney’s back injuries from jumping out the window still prevent her from working, and she stutters while talking. But the most jarring consequence, she says, is her confusion and anger as to why the police hadn’t responded to her plea for help prior to the shootings. Especially since Kruska had just been released from jail and was on parole after being charged with assault for choking her. Unknown to Mooney at the time, he had also been convicted of manslaughter in 1979, and the sexual assault of a 13-year-old in 1985.

“I started thinking, I’m a citizen of Canada, I pay my taxes, I’ve never been in any trouble or broken the law. I’m a good citizen. Why didn’t they protect me?”

RCMP made no promises

Mooney’s case is complex, and no slam dunk. It is being argued under tort law, which deals with the obligation of members of society to not harm other members of society. In order to successfully prove harm in this case, lawyers must prove that one particular incident caused another. Mooney’s lawyer, Henry Wood, has argued that the police failed to take reasonable steps to ensure her security and safety.

“If the police officer had fulfilled his duty, he might have changed the outcome. It’s not so preposterous a conclusion to make,” argued Wood in court.

But before showing that one incident caused another, lawyers have to first prove that the RCMP breeched their duty. The lack of agreement on what this duty means is one source of contention. Crown defense lawyer, George Carruthers, argues that to prove the police breeched their duty to protect Mooney, it must be shown that a special relationship existed between Mooney and the police. He explained that Mooney’s relationship with the police wasn’t one of reliance as the RCMP had not promised to take action against Kruska.

“What we have here is an omission that failed to improve the situation,” argued Carruthers in court. “You can’t impose reliance on an individual. There has to be some acceptance of the responsibility.”

Defense lawyers say that even if it can be proven that the police did not fulfill their duty, it does not necessarily follow that an investigation could have prevented the shootings from occurring.

Mooney’s suit against the RCMP, the Attorney General of B.C. and the federal Department of Justice was first heard in 2001, but was dismissed by Justice Ross Collver, who concluded that the police are guardians and not guarantors of public safety. The judge did conclude that the police officer was negligent and did not carry out his responsibility to investigate Mooney’s complaint, but found that there was no direct evidence to suggest that the RCMP’s failure to investigate her complaint resulted in the 1996 shootings.

Mooney immediately appealed the case. She was dumbfounded by the defense’s argument that she was to blame for the incident. In 2001, defense lawyers accused Mooney of being the “author of her own misfortune.” They said that Mooney should have left Kruska long before the 1996 incident and explained that the police can only do so much to help someone from themselves.

“Are they saying that it’s all my fault and the police and Roland aren’t to blame at all?” she questions.

Murky zone of the law

Experts say Mooney’s case exposes a grey area in tort law. Cases like this are difficult to prove because the causation argument rests, to a great degree, on hypothetical situations and sometimes, a good deal of speculation.

Over the past 20 years, Canadian courts have been considering changing the test of causation. Vaughan Black, a UBC Law professor, says that the number of developments in the law have left the area in a “confused state.”

Mooney’s case is novel because it raises interesting questions about the police’s duty to conduct competent investigations, says Black, who explains that a case like this wouldn’t be heard in many other places – for example, in England, where the police cannot be sued.

He adds that any case that tries to hold police liable is new ground. “This case is not purely a factual inquiry, but a policy inquiry.”

Mooney’s appeal is reminiscent of the Jane Doe vs. Toronto Police case – the first and only other successful case of violence against women in Canada to hold police accountable under civil law. In 1988, Doe was compensated for the police’s failure to warn her and other women that a serial rapist was assaulting women in her Toronto neighborhood.

For its part, the RCMP says it takes the issue of domestic violence very seriously and is bound by policy to carry out strict investigations when complaints are brought forward. “All members are required to conduct a complete investigation, even if victims may not want to cooperate,” says John Ward, spokesperson for the RCMP.

But Phil Morairity, who was asked by Mooney to independently investigate the case, says he couldn’t find a reason why Const. Andrichuk did not carry out a complete investigation. He added that, as a former Vancouver police officer, he knows that police officers are overworked and stressed, especially at the end of their shift, but said there’s no excuse for not investigating a case thoroughly.

Ward said that because Mooney’s case is before the courts, he would not comment on it. He says that since 1998, there have been major changes to police training and policy.

Now all RCMP members must take a three-day course that teaches them that they are required to conduct “thorough investigations” — even if parties involved are found to be intoxicated or no witnesses are available.

Women’s groups see equality test

But Mooney’s case is not only about beefing up police training, say women’s groups. They want courts to do a far better job of taking gender issues into account when they make decisions. The Vancouver Rape Relief and Women’s Shelter were in contact with Mooney during her first court case and, after the case was dismissed and appealed, won intervener status to tell the court why this case is about women’s equality.

Gayle Dickson, the lawyer representing the group, says that inadequate police investigations leave women unprotected and adds that her submission to court was to ensure that women’s charter rights are protected equally.

According to Statistics Canada, 29 per cent of Canadian women have been assaulted by a spouse, and four out of five people murdered by their spouses are women murdered by men.

Christine Boyle, a UBC law professor, hopes the Mooney case will reinforce the idea that it is unacceptable to blame victims for the harm that’s come to them, especially without giving them the power to do something about it.

Boyle acknowledges that even within feminist circles, people disagree over how police should handle domestic abuse cases. “But I’m inclined to think that it’s important for the state to take incidents of domestic violence very seriously. Very often it’s a life and death situation.”

‘It destroyed them’

The implications may indeed be serious and sweeping if the Court of Appeal rules in Mooney’s favour, say experts. Likely to be affected: policy surrounding women’s protection in cases of domestic abuse; the definition of police duty to the public; and precedents for future lawsuits against the police.

But defence lawyers ask: Should courts then hold police accountable for every case of spousal homicide? And they argue that a verdict against the RCMP will likely spur a harder line and more arrests in spousal abuse cases — increasing the number of lawsuits claiming wrongful arrest.

For Mooney the case boils down to something more simple, and vital. “It means that maybe somebody going through what I was going through doesn’t have to go through what I went through. Maybe somebody will get help.”

Mooney’s daughter Michelle was awarded the Governor-General’s Medal of Bravery in 1998 for helping Kristy flee through the bathroom window during the incident, and the Governor-General’s Star of Courage was presented to White’s family.

But the girls have not yet recovered from their psychological shock, their mother says, and Michelle still doesn’t have full use of her arm. “My daughter’s lives haven’t been the same since,” says Mooney. “It destroyed them. It’s ripped our family apart.”

She has this to say to women entering a new relationship. “You need to check on their background, their history.” And if that partner should turn abusive, “Make the police do their jobs. And even with the fear, get out. Go.”

Ai Lin Choo, a Vancouver-based Journalist, has written for the Vancouver Sun and currently writes for the Asian Post.

Note from Flora Loveday: To the detriment of thousands of unassisted stalking and domestic abuse victims in Canada, both the trial judge and the British Columbia Court of Appeal found that her claim must fail, as causation could not be established. Therefore, we can only conclude that police in Canada are not responsible for their actions (or lack thereof) during their duties as *public* servants.

Excellent argument on why police should be held accountable to protect the public:

In Duty, Causation, and Third-Party Perpetrators: The Bonnie Mooney Case, author Margaret Isabel Hall LL.B., LL.M., Lecturer at the Faculty of Law at the University of British Columbia. published an extensive argument on this matter. The author critiqued the court findings, and argued that it is coherent, principled, and necessary to find both duty of care and causation where police inaction allows domestic violence to continue.

Drawing primarily on sources from Canada and the United Kingdom, she explored the extent of police liability, and the responsibility to protect particularly vulnerable individuals. The author argued that it is inappropriate to find that police never owe a duty of care to the public: a duty of care should depend on specific factual circumstances.

She also argues that the traditional “but for” test for causation is not appropriate where inaction is the cause of the harm. Just as the material contribution test was developed to allow liability where causation was scientifically uncertain, a new test for causation should be developed where authorities fail to reduce a risk.

The author concluded that imposing liability is necessary to deter police from abdicating their responsibility to protect.

What are your thoughts? Should the police in Canada, or elsewhere in the world, be responsible for their actions?